FOSTA Unconstitutionally Limits Speech

Most Law Talkin’ Guy posts are summaries of current law, with highlights of existing Supreme Court decisions, but today is different. A friend of LTG is concerned about the impact of the “Allow States and Victims to Fight Online Sex Trafficking Act” of 2017 (FOSTA), which the President signed into law this week. Despite the title, it is my understanding that this law and its companion, the Stop Enabling Sex Traffickers Act (SESTA), was opposed by the Department of Justice and a wide range of grassroots sources, ranging from sex workers to human rights activists, all of whom argue that this law does little to fight sex trafficking, and puts consensual sex workers at far greater risk.

I do not write about this lightly, as legitimate efforts to fight sex trafficking should be applauded. Of course, even a “good” law that is nonetheless unconstitutional cannot be allowed, and a “bad” unconstitutional law serves nobody. There are a few major constitutional issues with these laws, and today I will focus on the First Amendment.

FOSTA criminalizes, among other things,

“operat[ing] an interactive computer service … with the intent to promote or facilitate the prostitution of another person” 18 U.S.C. §2421A(a)

This means several things, one of which is FOSTA created federal criminal liability for websites that promote or facilitate prostitution even in jurisdictions where prostitution is legal. (Note that running a website that aids in sex trafficking is already a federal crime, as it should be.) “Promote” is a broad term, one that does not necessarily mean a commercial transaction. Put differently, FOSTA restricts speech based on its content. That leads to a First Amendment analysis. I note that the Supreme Court test I explain below is law, while my application of it is my opinion.

The Supreme Court has developed a set of tests to determine if speech restrictions are Constitutionally permissible, and content-based restrictions trigger the toughest test: “strict scrutiny.” In order to pass this test, a law must be justified by a “compelling governmental interest” and the law must be “narrowly tailored” to achieve that goal. Here, there’s no dispute that the government has a compelling interest in stopping sex trafficking, a true evil. The problem is the second part of the test: this law is far from narrowly tailored to achieve that goal.

First, there’s the fact that prostitution, whatever your personal opinion of it, is legal in some places (and likely encompasses a range of consensual behaviors that certain jurisdictions may regulate differently). The owner of a website could face serious federal criminal penalties, including years in prison, for promoting or facilitating an activity legal in the state where it actually occurs. That alone is deeply offensive. As I noted above, “promote” is a very broad term. Whether or not I personally agree with prostitution has no relevance on whether people should be able to discuss it. I should not have to write the preceding sentence. Second, any time that speech is criminalized, there is a chilling effect on future speech, and that effect always impacts legal speech. There are already examples of legal speech being chilled in the wake of FOSTA. It is a dangerous road to go down. People who wish to provide health and safety information to sex workers can potentially be caught up in this. Remember that the USA PATRIOT ACT was enacted to fight terrorism but the vast majority of cases brought under it are for drugs. How will creative prosecutors bend this language to go beyond the stated purpose? Does anybody have any doubts that those who seek to criminalize homosexual behaviors and contraception will figure out a way to use this law to harm innocent people?

This law applies to the entire Internet, and there is already only a thin layer of federal law shielding Internet providers for liability for published content. If major players like Google or YouTube decide it is not worth potential legal hassle, commonly used information-sharing platforms will be be curtailed, all because fear of prosecution due to government speech restrictions. Very scary.

I believe this law is wrong, legally, but I cannot write about every legal wrong. I chose this one because a friend in the sex industry wrote to me, concerned about the well-being of his friends from the (unintended) consequences of this law, and asked if I would write something to help defend an already marginalized community. Broad, vague laws are dangerous in the best of times.